This article was originally posted in Issue Spot, the BBA's public policy blog. Click here to view the original article.
The Massachusetts Uniform Probate Code (MUPC) takes effect on March 31st and Issue Spot reached out to some BBA members for their take on the new law. Below are the independent thoughts of the expert trusts and estates attorneys we surveyed:
Peter Shapland – Day Pitney LLP
Most attorneys agree that the greatest benefit from the MUPC will be in the greater ease of “probating” wills and in the administration of testate estates. The “informal probate” process will permit executors to begin their work in most cases without any undue delay and without any formal reporting to the Probate Court along the way.
The MUPC will not dramatically change my advice to estate planning clients, since I’ve never felt that the Massachusetts probate system was all that unduly burdensome. The MUPC does permit some additional flexibility in the drafting of wills (e.g., disposition of tangibles), but most of the changes will come in the greater efficiency of administration of estates.
I can think of no cases where the outcome would differ under the new MUPC, but I can think of many cases where an estate would’ve been administered more easily under the MUPC, making the outcome come out sooner.
Brad Bedingfield – Wilmer Cutler Pickering Hale and Dorr LLP
Perhaps the biggest benefit I see from the MUPC for my practice is virtual representation. The ability to file cases without necessarily having to use a guardian ad litem will streamline certain matters.
In addition, the new rules regarding limitation of actions against trustees who present final accounts or statements to beneficiaries (but don’t necessarily seek formal approval of the court of the trustee’s accounts) will give some certainty to trustees who provide sufficient information to beneficiaries but don’t want to procure assents or incur the expense of court proceedings.
Cameron Casey – Ropes & Gray LLP
I expect that the greatest benefit of the new probate law will be that many estates can be administered informally, meaning that the beneficiaries of the estate, rather than the Probate Court, have primary oversight over the personal representative’s actions. In informal administration, the appointment of the personal representative – whom we used to call the “executor” – can be accomplished quickly (as soon as a week after the decedent’s death), and the estate settlement process is greatly simplified. In addition, in many cases, trustees of testamentary trusts will be relieved from having to regularly account to the Probate Court and petition to have their accounts allowed – a process that in the past has entailed a significant investment of time and expense for the trustee.
I anticipate that we will advise many of our clients to choose informal administration, which will streamline the probate piece of the larger estate settlement process and reduce costs and headaches for the clients. (There is a noticeable furrowing of clients’ brows when you tell them that, under current law, they must wait several weeks or even months to be appointed executor.)
In certain circumstances, we may also incorporate testamentary trusts into our estate planning for clients, which we have rarely done in the past because of the accounting burden discussed above. So, for example, rather than create a new inter vivos trust or search for an existing trust to hold property for a client’s children until they reach a designated age, we may instead draft a simple, short-term trust under the client’s will.
Whether in the context of estate planning or probate matters, the new law adds to the trusts and estates lawyer’s toolbox, giving her additional ways to help clients arrange their affairs in the simplest and most reasonable way.
- Kathleen Joyce
Director of Government Relations
Boston Bar Association